proving disability discrimination when the employer is responsible for causing some of the disability

I have a situation which has required me to take the case to the employment tribunal. My claim includes unfair dismissal, disability discrimination (both direct and indirect), and failure to provide reasonable adjustments. My evidence includes, but is not limited to, rather a lot of extremely offensive emails which came to light as the result of a Subject Access Request.

The employer's solicitors have, of course, claimed that I don't have a disability and that moreover, I didn't disclose it when I first started working for them. When I started working there, I only suspected I had Aspergers and I didn't have a diagnosis yet, but, as the result of poor treatment at work, I developed a stress condition that was a recurrence of a very similar condition I had suffered in the past (more than a year before). I disclosed this condition to my Line Manager (making note of the symptoms which included headaches, sleeplessness, and difficulty with social interaction), who not only proceeded to reveal details of my condition to several of my colleagues without my permission, but also failed to make any adjustments for my illness, e.g. by reducing my unfair workload to the same level as my colleagues, which is all I asked for (and that doesn't even really count as an adjustment anyway).

As I was not familiar with UK disability law at the time, it did not occur to me that my stress condition could be considered a disability in itself. However, as she deals with such matters all the time and it is a big institution, I feel that my Line Manager should have immediately ascertained whether my condition could be considered a disability, in order to both uphold my rights and also to make sure that the employer would not be hauled to the tribunal at a later date. Now I have a diagnosis of ASD but that was disclosed to them well after my trouble started.

After my disclosure (and even before it), some of my colleagues were regularly making fun of my trouble with people skills, personal interaction, etc., and also withholding information I needed in order to do my job because of it, in so many words. This was just in emails, so I shudder to think how much they were saying verbally behind my back. Therefore I was put at a disadvantage because of traits related to my disability. The thing is that, even if they didn't know about my ASD, they were treating me badly because of it. This is the one disability with the symptom that we will automatically be treated badly by others.

So, the first question is whether the employer can be held accountable for harassment based on disability if the people doing the harassing didn't know the name of the particular disability, but were just picking on symptoms of the disability that I had happened to reveal to my Line Manager (some of this occurred before he disclosure and some after, so the disclosure itself didn't seem to have had any effect).

As I said, the stress condition could be considered a disability under the law, but it was caused by my colleagues' poor treatment of me. Therefore the second question is whether those employees can be held accountable for harassment when I had not technically disclosed my ASD previously (i.e. is it enough to say that I did have the underlying ASD condition and call that a disability which would therefore mean that I had always been protected under the Equality Act, or is the disability counted from the diagnosis, even though it is a life-long condition?).

One of my points of confusion now is that, according to what the tribunal may determine (and I have no idea how they determine this), my underlying ASD might not have, by itself, presented symptoms severe enough to cause me substantial impairment in my day to day activities, and therefore it might have been perfectly ok, under UK law, for my colleagues to bully and mistreat me because of it. But then when they did so, they caused the stress condition, which had much more severe symptoms and exacerbated my ASD symptoms as well, meaning that I was then definitely substantially impaired in my daily activity. The third question is can my employer say that even that doesn't count as a disability because when the stress condition recurred (and therefore became a disability, given that it could now be considered "long term"), my colleagues had already been harassing me, so none of their harassment actually counts because I didn't "start out" with a protected characteristic?

Additionally, once I officially disclosed my ASD (officially as a disability, and not just informally to my Line Manager as I had before), though it wasn't yet officially diagnosed at the time, all of a sudden the employer was asking me about reasonable adjustments all the time. They wouldn't provide them, of course, but just offer them and promise them and then deny them at the last minute, in meetings, for example. Anyway, they never told me that they didn't accept that I had a disability at the time I disclosed my ASD, but all of a suddent the solicitors are making that claim. Is there some sort of law about this? Weren't they obligated to communicate their official stance on my disability status so that I could have provided further information or whatever they needed? Is it really acceptable, under the law, to appear to accept the disability disclosure, and then suddenly do a complete 180 when it's convenient for them?

Has anyone had to prove disability to a tribunal and were successful? There are some posts here about it, but no success stories, unfortunately, so I don't know how people got on.

For several months, I have been ill because of the treatment I received at work, and I have been unable to even leave my home without much anxiety. Therefore I have also been without any income for this time. Applying for benefits is a nightmare. I could also use some advice from people who have successfully completed the ESA50. I find the form offensive, to be honest, but I have to do it in order to get anything.

Thanks for the replies. I have already gone through the grievance process which resulted in absolutely nothing. The union won't help me because I wasn't already a member at the time of the incidents (so you should probably consider that before advising people to join a union when they are already having trouble). I was dismissed several months ago, so any advice assuming I am still in the work situation, though possibly useful for others in an unpleasant work situation at present, won't help me now. I have already submitted my claim to the tribunal, and in their response, my former employer's solicitors are saying I don't have a disability and they never believed that I did, even though they had kept asking me whether I needed reasonable adjustments.

I have been asked for an impact statement and I need to know how to best write it in order to strengthen my case. I am looking for specific advice and anecdotes, etc. because even those who have given me legal advice have been very vague about exactly how strong my case needs to be in order to win.

The union won't help me because I wasn't already a member at the time of the incidents (so you should probably consider that before advising people to join a union when they are already having trouble).

Sorry to hear that; my limited experience has been different. My advice that anyone in employment should join a union would still stand: you never know what might happen and, whilst unions are not perfect, they are useful.

The burden of proof at a tribunal is the same as a civil court, ie, the balance of probabilities.

If you collect the evidence that you are autistic, (a report from your doctor, a report from the psychologist/psychiatrist that explains how you are affected by autism) and a list of ways you are affected by autism in everyday life. There are a lot of examples of these on lots of posts on this forum. Proof of disability is 'negative' in the fact it is concentrated on the things you cannot do or which you have difficulty with rather than things you can. And you should not really have too much trouble in showing the ways you have trouble with 'normal everyday activities'. Such things as lack socialising, communicating, misunderstanding and being misunderstood, .all have a

Generally employers try to shift the blame for anything towards the employee. And they have their own solicitors to help them.

Employment Law and Tribunals and ACAS codes of practice depend on 'reasonableness'. What would a reasonable employer do? And you need copies of your former employers grievance policy, their bullying and harassment policy, their Equal Opportunities Policy, all at the time of when you had the trouble, and go through them very very thoroughly. More cases are won at employment tribunals because the employer failed to follow its own policies than you would think.

Although concerned with disability generally and not autism, the ACAS website has lots of information about disability and disability in the workplace:

With regards to the duty to make reasonable adjustments under the Equality Act, this applies if:

1) You’re disadvantaged by something because of your disability,2) It’s reasonable to make the changes in order to avoid the disadvantage, 3) The employer knows, or should reasonably be expected to know, about your disability and the disadvantage suffered because of it.

Therefore, given 3), you do not have to specifically inform an employer of a disability or have a diagnosis of one in order to claim disability discrimination. Though it is harder to prove that the employer should have reasonably expected to know about your disability, you may have some evidence of this in records of communications.

As for a disability caused by the employer, you will have to prove it meets the definition of a disability under the Equality Act, and then it will be accepted that the employer should have made adjustments for said disability from the time it is proved to have started (usually worked out from medical evidence).

Whilst I didn’t have my full Tribunal hearing (I settled part way though), all three of my disabilities were proved and ultimately accepted by my employer, though they had originally tried to deny two of them. This was done through disclosure of medical documents, a disability impact statement prepared by myself and further and better particulars provided by my solicitor.

I am concerned that you say that those that have provided you legal advice have been vague about the strength of your case - solicitors should provide clear merits assessments, which are updated as the case progresses. They usually give percentage prospects of success which always allow for the fact that there is no certainty in any legal case. Have you not had one of these, or are you not using a solicitor?

Keep a diary of the symptoms you are suffering as a result of their treatment, and also a record of your attempts to mitigate loss e.g. efforts to seek work/benefits or records of why you can’t do so including medical evidence.